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Neutral Citation Number:
Reported Number:	R(CS)6/05
File Number:	CCS 3757 2004
Appellant:
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	02/02/2005
Date Added:	17/02/2005
Main Category:	Child support
Main Subcategory:	variation/departure directions: diversion of income
Secondary Category:	Child support
Secondary Subcategory:	variation/departure directions: other
Notes:	Tribunal practice - power to require information - adverse inference Child support maintenance assessment - departure direction - whether taking a company car is a diversion of income The parent with care was a partner in a firm of solicitors. He applied for a departure direction from the formula assessment of child support maintenance and the Secretary of State referred the application to an appeal tribunal. The parent with care asked the tribunal to require the absent parent to produce information which he had declined to supply to the Secretary of State. The tribunal stated that, though it could make a direction, it had no power to enforce it, and instead drew an adverse inference from the absent parent's failure to co-operate. The tribunal made a departure direction on three grounds. The absent parent appealed to the Commissioner against the tribunal's departure direction. The issues for the Commissioner were whether the tribunal had been correct in (i) drawing an adverse inference from the absent parent's non-co-operation with the Secretary of State and (ii) treating the taking of a company car instead of cash as a diversion of income. Held, allowing the appeal, that: 1. the tribunal had erred in failing to use its power to make a direction, as it was possible that the absent parent, being a solicitor, would have complied with directions from a tribunal (paragraph 8); 2. the tribunal could have exercised its power to summon the absent parent as a witness, and the absent parent might have complied, or, if he had not, the parent with care could have sought a penalty from the courts (paragraph 9); 3. adverse inference does not operate in the absence of evidence, but as an additional consideration in the processes of assessing the probative worth of the evidence as a whole and of drawing inferences from the evidence available (paragraph 20); 4. the use of adverse inference is appropriate only where it is clear that the party's lack of co-operation is indicative of an inability to answer the opposing case (paragraph 25); 5. in taking the benefits of a company car, which was outside the formula assessment, instead of cash, which was within the formula assessment, the absent parent had diverted income to another purpose for the purposes of regulation 24(b) of the Child Support Departure Direction and Consequential Amendments Regulations 1996 (paragraph 34). The Commissioner remitted the case to a differently constituted tribunal with directions.
Decision(s) to Download:	R(CS)_6 05 bv.doc